Lawyer Wellness

Granted, as a morning person and a creature of spring & summer, I’m biased. That being said, between the sun, the bluebird skies, and the temperature, it doesn’t get much better than this morning in Vermont.

Speaking of spring and summer . . .

. . . oh wait, before I go on: happy birthday Ben Traverse! Ben has long contributed to others’ wellness, including mine. He was one of the earliest supporters of this blog, has a stellar record of providing pro bono services to clients unable to afford legal services, and, via his leadership role with the Young Lawyers Division, has served the past several years on the VBA’s Board of Managers. If you know him, check in with him today to wish him well.

Speaking of checking in, back to our regularly scheduled blog.

If you’re at all like me, you associate spring and summer with an improved mood & outlook on life. ‘specially ’round these parts, winter is long & dreary. So, as you enjoy a coffee on your porch with the only sounds being those of the birds, and as you revel in rolling the recycle bin to the curb without having to drag it thru slush, a morning like today’s lifts the spirits. Spring, summer, and all the good that comes with each are finally here.

But not everyone feels the same.

Like Ben Traverse, Andrew Manitsky sits on the VBA Board of Managers and has long-supported this blog and the profession’s larger efforts on attorney wellness. He’s a member of a PRB hearing panel and gets his wellness on by playing in a band. Last weekend, Andrew sent me this opinion piece that ran in the New York Times.

Warning: it is a heavy read.

But it raises an important point: for some, spring is a time of despair. Here’s the opening paragraph:

“It’s a popular and perhaps dangerous belief, reinforced by that inescapable Christmas classic “It’s a Wonderful Life,” that winter is the peak season for suicide. Yet experts have known since the late 1800s that it’s not true: More people take their own lives in the spring months than in other times of the year. No definitive explanations have emerged for why this is so.”

From there, the author shares a moving personal story. Then, concludes with a tip that all of us should consider. Referring to spring, she writes:

“It brings new pleasures by the week — asparagus in the farmers’ market, excitable toddlers in the playgrounds — and also a reminder to try to reach out to people who have lost someone recently, or those who seem withdrawn. They may need to be given a chance to talk about how they’re doing, and if things are very bad, encouraged to get the professional support they need. I can confirm that with time, help and love, things get better.”

Back to my original thoughts.

Speaking of spring and of checking in with someone, odds are that you know or work with an attorney who, if not struggling with significant behavioral health issues, is on the path towards the full-on struggle. An attorney who has started to withdraw.

Reach out, check in. As the author points out, sometimes that’s all it takes to make a difference for someone.

And, as regular readers of this blog know, I’m a big believer that we can make a difference, one person at a time.

(Try saying that 3 times fast and learn why today might also be national tongue twister day.)

What’s this got to do with wellness? Let me try to convince you that it does.

Per today’s ABA Journal, there are “gaps in Americans’ civic knowledge.” The gaps were revealed by the 2019 ABA Survey of Civic Literacy. Honestly, the numbers don’t look terrible to me. Especially compared to numbers I reported in this space a few years.

In this post, I referenced this poll. 37% of those surveyed couldn’t name EVEN ONE of the protections in the 1st Amendment to the United States Constitution.

Free speech, free press, and free society indeed.

As I blogged back then,

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org Ask for a pocket constitution. Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics. It might sound like a small step. It is. But small steps often lead in the right direction.

Within days, the challenged was accepted and my singing debut finalized. At the October 2017 Annual Meeting of the Vermont Bar Association I subjected those in attendance to my rendition of the Schoolhouse Rock! song. How it has not gone viral is truly the 9th wonder of the modern world.

If picturing me singing The Preamble to a ballroom full of 300 as my parents looked on in abject horror doesn’t improve your mood, then I don’t know what wellness is.

Furthermore, last week, Eileen Blackwood and I presented on professionalism at the VBA’s Basic Skills conference. Eileen urged the new lawyers to consider pro bono work. Among its other benefits, Eileen shared a poignant story of how a case that she handled pro bono brought her a measure of personal satisfaction that she didn’t always find in her work for “paying” clients.

Her story is relevant today.

Pro bono is a professional responibility. The rule here. It states that a substantial majority of a lawyer’s pro bono hours should be provided to persons of limited means or to organizations whose primary purpose is to support persons of limited means.

After that, however, Rule 6.1(b)(3) indicates that additional hours may include “participation in activities for improving the law, the legal system or the legal profession.” Per Comment [8], this includes “taking part in Law Day activities.”

So,

it’s clear that we need to do more to increase civic knowledge;

Rule 6.1(b)(3) and Comment [8] indicate that Law Day activities count as pro bono;

Today I meant to post early. After all, it’s Wellness Wednesday, a huge day for this blog.

Alas, I didn’t. But that doesn’t mean I wasn’t thinking about you! Indeed, this post has been on my mind nearly all day.

I went to bed early last night. I anticipated being up later, but the Bruins game proved anti-climactic so I went to bed. To me, it was PERFECT sleeping weather. Meaning, I slept with the windows open and the covers drawn.

Does this ever happen to you? You’re sleeping so well that you’re actually aware of how well you’re sleeping as you sleep? I swear it happens to me. Not often, but on occasion. And last night was one of those occasions.

Then I woke up. Raring to go. The birds were singing and I felt good. Sure, it was still a bit dark, but that was probably just the clouds.

Except it wasn’t. It was dark because it was 3:30 AM.

That NEVER happens to me. Yes, I like to get up early, but I define “early” as 5:30. As good as I felt, I wanted my 2 hours of sleep back! Then, the irony struck me.

Give it a read. It cites various studies that indicate that a lack of sleep causes health problems. And, contrary to popular opinion, our bodies struggle to recover from sleep deprivation. Meaning, “I’ll work all night tonight because I know I can sleep late Sunday” is not scientifically valid. And, as Fielding writes, “All-nighters push anxiety to clinical levels and even modest sleep reductions are linked to increased feelings of social isolation and loneliness.”

Alas, this morning, I didn’t fall back asleep. Rather, I made the mistake of checking scores, then email and – yada yada yada – the next thing I knew the coffee was brewing.

There was, however, a silver lining.

When I checked my email, I saw a notification that Professor Bernabe had posted a new blog. Given that the post focused on two topics near & dear to my blog – the duty of competence & fictional lawyers – it was a great way to start the day! Check it out. (My favorite voir dire (fictional or real) of an expert witness begins at the 8:13 mark in the video.)

The post put me back in a good mood, the early wake-up banished to the dusty corners of a memory bank that seems to consist of nothing but corners. In other words, reading the post increased my well-being. Thanks Professor! Further evidence of why you’re always on the #fiveforfriday Honor Roll!

Reading the post also got me thinking: I haven’t blogged about tv or movie lawyers in a while. And, for me, doing so is a source of wellness. So, I started searching the dusty corners – have I watched any blog-worthy fictional lawyers lately?

Not really. Recently, I’ve been into HBO. I re-upped a few weeks ago to catch up on Game of Thrones. When not catching up, I watched a bunch of episodes of Barry and 1.5 episodes of Big Little Lies.

The former? I know it has won a ton of awards, but I don’t love it. The latter, I loved the book. Despite its critical acclaim, I’m worried that the show won’t live up. So, as with most of my relationships, I’m starting by showing the show a lot of lukewarmth.

Besides those two, I binged on Veep. More accurately, re-binged, I LOVE that show. JLD has long been a favorite. Of course, I liked her in Seinfeld. And, as should be obvious by her numerous appearances in my real-life and #fiveforfriday quizzes, I thought she was fantastic as the ethically-challenged prosecutor Maggie Lizer in Arrested Development.

Alas, Veep provides no lawyers to write about. Yes, Selina was a lawyer before entering politics. And Richard holds a doctorate in constitutional law and is an expert on the electoral college. Still, nothing inspired me to write about either.

That leaves Game of Thrones. No, no character’s official profession is “lawyer.” I submit, however, that Samwell Tarly is the show’s functional equivalent thereof. If anything, he’s a veritable expert in parentage actions! Still, he’s nothing to blog home about.

So, having increased my wellness by using legal ethics as an excuse to write about tv shows, and having started to blather on even further than could be fairly described as “rambling,” I’ll get to the point.

I want to know what my readers think: when it’s all said and done, who will sit on the Iron Throne?

The latest Vegas odds are here. I can’t believe the line on Baelish. Intriguingly short! And, my poll is here, with candidates listed in the same order as the betting odds. I was tired of typing, so I cut off the list after Brienne of Tarth (and actually left off a few between her and Varys). Or, you can email me your theory/prediction.

I’m not sharing my vote. I do have one prediction to share though: the Night King and his ice Dragon will not be at Winterfell Sunday night. I predict they’ve headed south to attack King’s Landing.

Now, either vote, send me your prediction, or go to sleep. It’s all wellness! Even weller if you do all 3.

My first post on lawyer wellness appeared just over three years ago. Since then, I’ve posted almost 40 more.** There have been many others in which I mentioned the topic without focusing an entire post on it.

When my brother and I were kids, we didn’t control the music in the house. Our mom did. One group that received a lot of air time: The Carpenters.

Yes, I’ve posted a ton on attorney wellness. Yes, this winter, the Vermont Commission on the Well-Being of the Legal Profession released its State Action Plan. Comparatively, we are ahead of the curve in addressing attorney wellness.

Yet, today, I’m reminded of the title of a song by The Carpenters. In our house, I’m fairly certain the song was played until the 8-track wore out: We’ve Only Just Begun.

Here’s what reminded me of the song.

Last November, Above The Law posted Burnout, Flame Out, Or Timeout?The post was spurred by the fact that a lawyer named Paul Rawlinson had “taken a leave of absence to recover from the sheer exhaustion of running the second-largest law firm in the world.” In the post, author James Goodnow pitched an argument I’ve often made, albeit in a way much more eloquently than I. He wrote:

“If the classic answer to the increasing demands of the legal marketplace has been to get tougher, let me once again advocate for a new approach: getting ‘realer.’ We need to let go of the outdated concept of the inhuman, never-tired, always-working hero attorney and replace it with the vision of actual human beings, because that’s what we all are. We’re people, with physical and mental limitations, lives and families outside of work, and interests beyond briefing, drafting, and billing hours. We need to take better care of one another, at all levels, and take better care of ourselves.”

Flash forward to very sad news. Paul Rawlinson, the attorney who took the leave of absence? He died last Friday. Above The Law reported on his passing.

Rawlinson’s death crystallized a thought that’s been nagging me since the State Action Plan issued: we’ve only just begun.

Have we raised awareness? Yes we have, and it’s a damned good thing that we have.

But it’s not enough.

The work continues. As Goodnow argued, we must get “realer.” And, every one of us has a role to play in making the profession healthier and more hospitable to its members. Whether volunteering with the Vermont Lawyers Assistance Program, asking your firm to consider the ABA Pledge to Focus on Well-Being, not being a jerk to adversaries, taking a VBA CLE on mindfulness, or simply taking off one more afternoon this summer than you did last, we all have a role.

It will not suffice if, a few years from now, someone finds the State Action Plan and muses “I wonder what ever became of this.”

Indeed, what better time than now? It finally looks and feels a bit like spring, a season of of renewal. Today is a perfect day to renew, or at least to seed, a committment to well-being.

Not sure how? Don’t worry! A great place to start is with the ABA Well-Being Toolkit. It’s chock full o’ good stuff. For instance, consider this from the Toolkit:

“We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

It goes on:

This means that, if we truly desire to improve wellbeing, we can’t focus only on individual strategies like making lawyers more resilient to stress; it is equally important (if not more so) to focus on systemically improving our professional cultures to prevent problems from developing to begin with. We are interdependent in that our organizational and institutional cultures—to which we all contribute and which, in turn, shape us all—have a huge impact on our individual well-being. When our cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations.”

Finally, and consistent with the theme that we’ve only just begun:

This Toolkit is designed to help lawyers and legal employers improve well-being holistically and systemically. This goal will require new choices, considerable effort, and changes that likely will upset the status quo. Positive change agents might meet
with resistance—including complaints that there is no room, time, resources, or need for change. This Toolkit offers reasons for prioritizing lawyer well-being
as well as information, strategies, and resources for implementing a plan for positive change.”

We’ve only just begun. Will there be Rainy Days and Mondays? Hell yes. Lots of them. But, each small step towards a healthier profession brings us closer to the feeling of being on Top of The World.

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness. The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.” You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem. That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different. To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being. As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry. I’m all about mixing business with pleasure, so we also chatted about basketball. Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament. Tip-off is at 2:00 PM in Hartford, CT.

The attorney told me that she’s going. She’s taking her son. When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.” But, then, the attorney said to herself “yes, I can. This is exactly why I work for myself.”

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.” Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Today, I’d like to introduce you to Molly Gray.

Molly is an assistant attorney general. She’s also a top-notch cross-country skier who grew up on a working farm. Molly was kind enough to agree to answer questions that are loosely related to her background, legal ethics, and attorney wellness. All mistakes and typos are mine, not Molly’s.

MK:Thank you for doing this! Like me, you grew up in Vermont. Unlike me, it wasn’t near the Burlington airport. Tell us a little about life as Molly Gray before you went to law school?

MG: Thanks for reaching out! Where to begin, I grew up on a farm. A real working vegetable, fruit and dairy farm in Newbury on the Connecticut River. I was born on the farm. Yes, in the farm house in the early 1980s. My parents retired from competitive ski racing and shifted all that competitive energy to farming. They have an indomitable love of labor, Vermont and being outside. The skiing, at least, was contagious. I attended Oxbow High School (that would be the Oxbow “Olympians”) and a ski academy in southern Vermont, the Stratton Mountain School. All the skiing and probably farming in those early years, led to a scholarship to ski for the University of Vermont. I am extremely fortunate. After four years of racing, a budding interest in government, law, and international relations drove me, like my parents, to zero in on something new; an eventual legal career. That being said, I was 22 and had never really left Vermont! Ultimately, I attended Vermont Law School, but there was quite the eye-opening journey in getting there several years later

MK: Very interesting! So much information. But first things first. I have roots in the Upper Valley. My mom grew up in Bradford and was a Bradford Academy Admiral. In my job, I often preach a lawyer’s duty of competence. As a Newbury native, what is the only competent way to pronounce your home town?

MG: You had mentioned the Upper Valley connection. You are aware then of the friendly rivalry between Bradford folks and the community in Newbury. Frank Bryan once said Newbury is the town that time forgot. That’s probably about right. It is “New Bury.” It’s an “ury” instead of an “erry” and the “B” is right there with the “New.” “NewBury”

MK: Professor Bryan was my favorite professor at UVM! Speaking of UVM, you skied for the Cats. What were your events? Also, I don’t think people realize how amazing it is to receive a ski scholarship to UVM. Only 3 schools have won more national championships. That means that UVM is to college skiing what Duke is to men’s college basketball. Was UVM your dream all along?

MG: What a great time to talk about skiing – the University of Vermont Ski Team just hosted NCAA’s and came in second behind Utah. Go Cats! I will quietly admit that there was a short-lived and naive dream of skiing for CU Boulder but the then Director of Skiing, Chip LaCasse, to his credit, was recruiting locally (rather than internationally) and gave a handful of Vermonters opportunities of a lifetime.

I can’t comment on Duke basketball, but UVM skiing is not for the faint of heart. The nordic ski team trained every day, some days twice per day, with the exception of Monday, from August to March and all summer long. Races ranged from 5kms to 20kms, both classic and skate, with the occasional relay or sprint relay. Although skiing is an individual sport, in college you race as a team. Each Thursday we would load up the vans and drive to races or “carnivals” hosted by colleges across New England. Alpine and nordic team results would be combined after two days of racing with one collegiate team coming out on top. As you might imagine, there were UVM traditions to be upheld and no shortage of rivalries.

I raced all four years (not always fast) and served as a captain. Above all my teammates became some of my closest friends and remain so to this day.

MK: Colorado tries its best to beat UVM! That would’ve been a conflict of interest! #ThisIsVermont The Buffs loss was our gain.

All kidding aside, great answer! A few things.

First, the work required. Your success as a skier didn’t come by accident. The dedication to the training. I can’t imagine the time commitment! I suspect that growing up on a working farm was like skiing. Both probably involved lots of hard work, at hours that most people weren’t up, in weather conditions that kept most people inside. Did lessons you learned on the farm help with being a competitive skier? Did both (or either) help you to tackle the workload that is the first year of law school?

MG: Thanks! Although I have to say this interview is making me sound super tough and disciplined. I’m not! I still struggle with an early morning workout. To answer your question though, I do think growing up on a farm instilled an inevitable attraction to hard work and being outside. Farming, and having parents who do not shy away from a little healthy competition, probably left me and my siblings constantly self-imposing physical challenges–why carry one flat of strawberries when you can carry 2 or 3 or by end of summer 4. Equal parts training and efficiency. Without question, managing school work while ski racing (or vice versa) at UVM was great preparation for law school. I also came to appreciate, as I am sure many in the legal community do, that the most productive, “clear-headed” work, comes in the hours after a good workout.

MK: Clearing the head. That’s wellness! I’m with you though: as much as I love the idea of sunrise runs that I finish before work, those early wake ups are NOT fun. But, speaking of wellness, do you still ski? In legal ethics, I often talk about conflicts. For some athletes, the conflict that exists between doing something for enjoyment vs. doing it as a competitor is too much to overcome. So, once they stop competing, they give up the sport. Having competed at the highest levels, do you ever find it difficult to ski for the pure enjoyment of it?? Conversely, I still love to run even though I’m not as fast as I used to be. As much as I love it, there are times where what I wouldn’t give for just one more race as good as I once was. So, even if you’re out enjoying a beautiful & relaxing day on the trails, does your mind ever wander to that feeling you used to have as you waited at the starting line in Green & Gold?

MG: This is a great question! I’ll admit I still have the occasional racing dream. It normally starts out with feelings of incredible and surprising speed and “I’ve still got it” followed by profound and mortifying exasperation. When I was racing, I loved sprint races — 1km qualification, followed by the top 30 or so skiers racing in heats of 5 or 6 with 2 or 3 racers progressing from each heat to a final heat. It is a more tactical, high-energy and spectator-friendly race. In my dream, I can “fake it” for the qualification round.

Some athletes learn to ski in order to race. Although my parents were competitive ski racers, to his credit, my father taught us to ski for the love of skiing. Racing came later, and random sprint dreams aside, I crave a good ski far more than the competition.

MK: Love the dreams! Mine are often daydreams as I’m running. The body & brain re-living the feeling of a PR or great race. I want to go back to something you said earlier. You mentioned the life-long friendships with your teammates. There’s something about the shared experience that forges bonds – not only among teammates, but among competitors. My closest friends are people I met thru basketball. My “attorney wellness” is nourished by those relationships outside the legal profession. Do you feel the same?

MG: Absolutely. This is by no means a dig at our profession, I am happy to run or ski with fellow attorneys but sometimes you have to be clear about why you are doing what you are doing. Basketball, skiing, running, should be cathartic. Inviting colleagues does not always make it so. Inevitably, you start talking about work. There have to be some ground rules!

I recall the first winter I did not ski race and did not have teammates. It was 8 months after graduating from UVM, I moved to Washington, D.C. to work for Rep. Peter Welch. I had not figured out the work-life balance and it was the first winter without racing or a true winter. My body was miserable and confused. On the advice of a friend, I joined a running club “Fleet Feet Sports” in Adams Morgan. A couple of the runners became close, non-work, running friends. We trained for the USMC marathon together and built a unique bond that was cathartic, supportive, competitive and limited to our non-work identities. It was terrific. I have lived in a lot of different places and try to forge these bonds.

(Molly, some of her UVM teammates, and Rally Cat)

MK: I like those bonds. As lawyers, we seem to focus on discrete practice areas, tending to bond with others in the same area. How’d you end up focusing on Nordic vs. Alpine? Also, once we pick a practice area, we seem not to venture to another. Do you downhill ski?

MG: I like the comparison to practice areas. I keep both sets of equipment in my car (just in case…). I learned to alpine ski at one of my favorite spots in Vermont, “Northeast Slopes” in East Corinth. It’s one of the oldest rope tows in the United States, and still operating today. One of Vermont’s hidden treasures. Why nordic? My mother was an alpine racer (an adrenaline chasing downhill racer) and my father was a nordic racer. Ultimately, nordic won over, but the practice areas are ever evolving.

MK:The T-Bar! We used to drive by the Slopes on our way to Bradford! Speaking of “ever evolving,” can we talk about training equipment for a moment? I often speak and blog about tech competence. A few years ago, I was running down Spear Street. The UVM ski team was coming other way. It was summer, so they were doing dry land training. They had these contraptions that looked like giant elliptical machines! I was fascinated. Did you ever train on one of those?

MG: Roller skis! I haven’t put on a pair since 2006. Hundreds, likely thousands, of miles banked on those “contraptions”. I hope the design has improved. In my day they took a lot of balance, and although they were the closest thing to skiing (literally, short skis with wheels on them), they contributed to some pretty epic wipeouts. No breaks! While at UVM, we did an annual 50km or so fall training “ski” through Underhill, Cambridge and up to Fairfax. All told, roller skis do provide a unique way to see some beautiful parts of Vermont.

MK: Yikes! Concrete ain’t exactly fresh powder! I do not wear headphones on my runs, even the 20 milers. Other runners think I’m nuts. You are out for a long ski by yourself. Headphones or not?

MG: Headphones? No. You’re out in the woods and its beautiful. Enough said.

MK:Runners should take heed! Ok, circling back for a moment. You mentioned an eye-opening journey from your last days at UVM to your first days at VLS. Can you give us some highlights of the journey?

MG: I really don’t want to bore your readers to death. In a nutshell, upon graduating from UVM in 2006, I worked as a Congressional campaign scheduler for longtime attorney and state senator Peter Welch. Over a 3-month period, Welch visited all 251 towns (and gores) in Vermont. Ultimately (and I would like to think the 251 “marathon” had something to do with it), Welch won that November and I was offered a job in Washington. A whole crew of Vermonters were hired. It was a tremendous honor to be part of that. Eventually, and because the world was calling, I went on to work for the Geneva-based International Committee of the Red Cross (ICRC). As a Congressional Affairs advisor in the Washington office, I worked with US lawyers and policymakers on international law issues including those arising at the detention facility at Guantanamo Bay, in Iraq and Afghanistan, and with the emerging use of drones. I travelled a lot during that time and led missions to Haiti, Uganda, the Democratic Republic of the Congo, the former Yugoslavia and Georgia. It was eye-opening to say the least! A far cry from Vermont, and as they say, “you can take a girl out of Vermont, but …,” by 2011 I was ready to come home and get cracking on law school.

MK: Wow! Traveling the world to help people. You did Vermont proud! And we’re lucky to have you back. Okay, who are the 2 or 3 other skiers, living or dead, who you’d pick to be on your “dream relay team?”

MG:

Bill Koch – A Vermonter and the first American ever to win a medal at the Olympics (Innsbruck ’76) in cross-country skiing. For all intents and purposes, he also invented the “freestyle” or “skate” technique.

Jessie Diggins – Not a native Vermonter (I’m all about inclusivity) but she trains here now, and second American ever to win a medal at the Olympics (PyeongChang ’18) in cross-country skiing. She is an awesome ambassador for the sport and role model for girls.

Bob Gray– Yep, going with my old man. I’ll be honest, there is not a person on the planet who loves the sport as much as he does. All heart.

MK: Good job getting Dad in there! I read in the Valley News that he’s still kicking butt!

(Molly and her Dad)

MK: Earlier you mentioned classic vs skate skiing. With the duty of competence in mind, do you have any thoughts on a lawyer who shows up at Trapp Outdoor Center, rents classic skis, then proceeds to try to skate ski all over the property?

MG: Oh, no. Such a brave lawyer. That would be comparable to arriving criminal court and attempting to litigate a civil claim. I’m always happy to advise on equipment and better yet meet for a ski and especially at Trapp’s.

MK: Molly – that is the perfect closing argument in your case to disbar me from cross-country skiing: “Kennedy is no Bill Koch: it’s like he’s a lawyer who brought a civil claim to criminal court.”

Thank you Molly Gray! Hope some people are inspired to get out and enjoy these last few weeks on the trails!

Indeed, as @CounselorAdrian has hashtagged of late, #TheLightIsWinning.

That’s wellness!

On the other hand, I’m not certain that the light was winning in Shakespeare’s Sonnet 152.

I know next to nothing about Shakespeare. With “next to” being defined as “immediately adjacent to, if not leaning upon.” It’s my worst category in Jeopardy. Even worse than “Opera.”

Sometimes I watch Jeopardy with my mom. When “Opera” is a category, I drive her crazy by yelling “Puccini!!” as soon as each clue is revealed.

You know what? Every now and then “Who is Puccini” is right!

Alas, I have no such luck in “Shakespeare.” That’s because the easiest clues are worth $200. Not 2 cents.

Anyhow, looking for something to tie to this week’s number, I stumbled across Sonnet 152. It’s the last of the so-called Dark Lady sonnets. Literally, here’s the CliffsNotes version. In short, in Sonnet 152, the writer acknowledges that love has rendered him blind. It left him unable (or unwilling) to see what was obvious.

“We have, regrettably, become comfortably numb to something we need to prioritize and invest in—lawyer well-being, including mindfulness and meditation.”

As most readers know, I’ve banged the drum on attorney wellness, both on this blog and at presentations around Vermont. Overall, and over time, the reception has been positive. The profession now realizes that it has to do something for lawyers who are coping with significant behavioral health issues.

Mindfulness? Folks seem a little more fuzzy on that, less willing to agree that it’s a critical component of competence. That’s where Sonnet 152 and Comfortably Numb collide.

Please read the ABA Journal’s full post. Otherwise, in short, Bunn argues that being mindful of mindfulness is a good thing for the profession. His argument reminds me that attorney wellness is much more than helping lawyers whose practices are at risk due to crippling and unaddressed substance abuse & mental health problems. Wellness includes mindfulness, or, as Bunn writes:

“Don’t get me wrong—I don’t believe that the legal profession is broken. But it certainly is sick. Sick, as in: Not sustainable as currently constituted. That’s because our profession comprises women and men who can all use a little TLC, once in a while.”

He continues:

“Mindfulness and meditation are important pieces of the well-being pie, and our institutions would do us all a great service—they’d do themselves a great service—if they could find a way to normalize those practices and bring them into the everyday realm of our profession. Neither is a panacea for everything that ails our profession, but they can provide us with precious time—time to sharpen our awareness, time to contemplate and reflect—time for ourselves, which, in turn, can benefit our institutions.”

In Sonnet 152, the speaker realized he’d long turned a blind eye to the obvious. In a way, we’ve done the same. Every single one of us needs a little TLC every now and then. It’s time to open our eyes to mindfulness.

There are two rules that impose a duty to take “reasonable remedial” action or measures. One is the rule that addresses a lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer did it. The other is the rule that addresses a lawyer’s duties when the lawyer learns that:

A. the lawyer deposited the lawyer’s own funds into a trust account

B. opposing counsel violated the Rules of Professional Conduct

C. the lawyer inadvertently communicated with a represented party

D. a client engaged in criminal or fraudulent conduct related to a proceeding in which the lawyer represents the client

Question 4

Lawyer called me with an inquiry. I listened, then asked:

“I understand the first part: you have reason to believe that your client is going to commit a criminal act. What I didn’t understand is this: is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Lawyer’s inquiry related to the rule on:

A. Client confidences

B. Withdrawal

C. Concurrent conflicts of interests

D. Duties of a Prosecutor

Question 5

Speaking of Shakespeare, what did Dick the Butcher suggest to Jack Cade that they do first?

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

I usually use the intro to the quiz to share a memory triggered by the week’s number.

Not today.

The staggering rates at which lawyers suffer from behavioral health issues have the profession at a crossroads. To borrow a phrase, we are Under Pressure. More precisely, the pressures on lawyers are not only driving lawyers from the profession, they’re killing lawyers.

Available data suggests that approximately 500 of Vermont’s licensed, employed lawyers are problem drinkers. At least as many have likely suffered from problem anxiety or problem depression within the past year.

I know, for a fact, that in the past 3 years, as many of Vermont’s licensed, employed lawyers have had their law licenses transferred to disability inactive status as did in the preceding 15 years.

I know, for a fact, that at least 5 of Vermont’s licensed, employed lawyers have taken their own lives since 2014. I also know, for a fact, that at least 1 other died of alcohol abuse.

I wasn’t exaggerating when I said that we’re killing ourselves.

What’s this got to do with ethics? Pretty much everything.

The first of the Rules of Professional Conduct requires lawyers to provide clients with competent representation. Here’s a quote from last summer’s report of the National Task Force on Lawyer Well-Being:

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basiccompetence.” (emphasis added).

Last week’s quiz referenced James Valente’s fantastically competent rendition of the minutes of the Windham County Bar Association’s 2018 Annual Meeting sung to the tune of Queen’s Bohemian Rhapsody. Quite cleverly, a team of lawyers submitted answers to the quiz using the team name Under Pressure.

(For those of you who don’t know, Under Pressure is a song by Queen and David Bowie. The official video is here. The version with the Freddie I remember is here.)

Last night, reflecting on what to post today, I listened to music. As I navigated my Amazon Music app, I stumbled across “Top Songs in Prime.” Scrolling thru, there, at #88, was Under Pressure. I’d have listened anyway, because I love the song. Still, seeing the title made me think of last week’s quiz.

I like to sing along when I listen to music. And I like to be right. Exactly right. So, despite having listened (and sung along) to Under Pressure countless times in my life, I Googled the lyrics.

Until last night, I’d listened, but never heard. The lyrics almost perfectly describe the pressures that the legal profession is facing.

For example:

It’s the terror of knowingWhat the world is aboutWatching some good friendsScreaming ‘Let me out’

That’s what 5 suicides are.

Next:

Turned away from it all like a blind man.Sat on a fence, but it don’t work.

That’s what we’ve done for years. Ignored the problem. Sat on the fence.

Neither works. Neither helps.

Here’s the part that most struck me:

‘Cause love’s such an old-fashioned word,And love dares you to care for the people on the edge of the night,And love dares you to change our way of caring about ourselves.This is our last dance.This is our last dance.This is ourselves.

The Vermont Commission on the Well-Being of the Legal Profession recently released its State Action Plan. Please read it.

It’s time to fund a Lawyers Assistance Program.

I dare you to care for the lawyers who are on the edge of the night. The lawyers who, due to the stigma we’ve imposed, are too afraid to ask for help. If you don’t think the stigma is real, read this.

I dare you to change the way we think about caring about ourselves as a profession.

I dare you to love your fellow lawyers.

Our response the State Action Plan presents a chance to help to relieve the pressure.

We have to take the chance. Because the problem? This is ourselves. And, absent action, this opportunity to act might be our last dance.

Under pressure.

Onto the quiz.

Rules

None. Open book, open search engine, text/phone/email-a-friend.

Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)

Unless stated otherwise, the Vermont Rules of Professional Conduct apply

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

In Vermont, if a prospective client meets with but does not retain a lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client, but another duty is not.

Which duty?

Question 2

There’s a rule that prohibits “qualitative comparisons” that cannot be factually substantiated. A disciplinary prosecution under the rule is most likely to involve:

A. a frivolous pleading

B. a statement made during closing argument in a jury trial

C. extrajudicial statements made to the press that are likely to prejudice an adjudicative proceeding

D. attorney advertising

Question 3

With respect to the Rules of Professional Conduct, the phrase “acting through its duly authorized constituents” is in the rule on:

A. the duties when representing an organization

B. lawyers holding public office

C. firm names & letterhead

D. the unauthorized practice of law

Question 4

Here are 2 things I mentioned at CLE:

last minute changes to wire instructions;

a prospective out of state client who claims to be owed money by a Vermonter, and who only communicates with you by e-mail

What topic was I discussing?

Question 5 (Fill in the blank)

I often blog about Rule 1.1’s duty of competence.

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers. Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars. Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being. That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers. Relevant to my job as bar counsel, the national report noted:

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Again, Vermont’s state action plan is here. When you have time, give it a read. Here’s the concluding paragraph from the introduction:

“Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100% We cannot neglect the issue. As a profession, we must follow-up on the action items. We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow. Great ideas. I wonder what ever became of them?”